States not enforcing "get tough on crime" laws

By Deborah Hastings Associated Press

WASHINGTON — For the last four decades, the laws of the land were all about dropping the hammer on crime by locking away criminals for a very long time.

Some carried scary names like "Three Strikes and You're Out," as in cast out of society. The harshest penalties for drug offenders, the Rockefeller laws, were named after a New York governor battling a 1970s heroin epidemic.

Nearly half the country and the federal government have adopted some kind of hardcore laws, while "get tough on crime" became the mantra of politicians running for everything from the local city council to the president of the United States.

The public, too, was enamored. The laws promised to make life safer in increasingly unsafe times by putting away bad guys and hiding the keys for years - no more slaps on the wrist, no matter if the ultimate offense was having drugs in your pocket or stealing golf clubs.

New York Gov. David Paterson stands behind a stack of 30,000 petitions signatures calling for repeal of the Rockefeller Drug Laws on March 10, 2009. (AP photo)

But after cracking down and incarcerating hundreds of thousands, cash-strapped states including New York, Kentucky and Kansas are pulling back. They face an uncommon confluence of dire economics and prisons bursting at the seams and several have changed, in whole or in part, their stances on hard punishment.

Their reasons: the get-tough laws didn't always work, especially when it came to slowing recidivism, the revolving door of prisoners who get out, mess up again, and come back. There were legal challenges, and questions about whether the punishment always fit the crime.

And of course, there's the money. In tough economic times, the expensive laws are increasingly being deemed expendable.

Last week, New York reached an agreement to repeal the last vestiges of the Rockefeller drug laws, once considered the harshest in the nation.

It's expected to save some $250 million per year - New York spends about $45,000 annually per inmate while treatment cost estimates are $15,000 or less - at a time when the state is grappling with a projected budget hole of $17.7 billion.

Passed in 1973, the laws were named after Republican Gov. Nelson A. Rockefeller, who insisted strict sentencing was the way to wipe out soaring street crime and heroin use. The penalties were severe: judges were generally required to impose minimum sentences of 15 years to life for those convicted of selling two ounces or possessing four ounces of narcotics - the same punishment for second-degree murder.

The laws soon became highly controversial, with opponents claiming they were Draconian and locked up low-level offenders who would have better benefited from drug treatment. After the new rules took effect, narcotic offenders surged from 11 percent of the state prison population to a high of 34 percent in 1994, according to state corrections numbers.

But many prosecutors and law enforcement agencies see good in those numbers, contending that more criminals in jail means lower crime rates in America. Though crime rates have plummeted across the country in the past decade or so, some legal advocates credit not harsh sentencing laws, but overall improvements in law enforcement practices like community policing, a strong economy (until recently) and declines in handgun use.

Things changed little for the Rockefeller laws until 2004, when some of the harshest penalties were removed. Then, last year, critic David Paterson was sworn in as governor after fellow Democrat Eliot Spitzer resigned in the wake of a prostitution scandal. He made immediately clear he planned to get rid of what remained.

His agreement with legislators gives judges - not district attorneys - sole discretion to order nonviolent addicts to treatment instead of jail and ends mandatory jail time for first-time offenses in which violence plays no part. It also expands treatment services and drug courts and allows about 1,500 people already incarcerated to apply for resentencing.

"A huge percentage of these people can be treated," said acting New York Supreme Court Justice Laura Safer Espinoza, who has spent more than a decade in a Bronx drug court. "They can become producers instead of drainers."

In her court, nonviolent drug offenders who stay clean while working or attending school full time can have their sentences reduced or dismissed. "We have a 55 to 60 percent success rate," she said. "That is excellent for the kind of people we're talking about."

At least 16 other states in the past year have changed regulations.

Last month in Kentucky, where the prison budget is nearly half a billion dollars, Gov. Steve Beshear signed bills expected to save more $16 million by allowing addicts to seek treatment instead of prison, as well as other incentives.

Kansas and New Jersey reduced the number of parolees who would have faced going back to prison for technical violations such as missing meetings with their parole officer, according to an analysis released last week by The Sentencing Project, a research and reform advocacy group.

"The rapid rise in prison populations over the past two decades has now collided with the fiscal crisis," said executive director Marc Mauer. The U.S. prison and jail population has reached an all-time high of more than 2.3 million, the report said, based on government figures.

By far, California has the most stringent three-strikes laws. Unlike other states, it says third-time felons can be put away for life for last offenses including petty theft and shoplifting. A third-strike conviction carries a sentence of 25 years to life.

The state may be forced to release up to a third of its nearly 170,000 inmates because overcrowding and poor medical care are causing the deaths of about a prisoner per week, a three-judge federal panel said in a tentative ruling in February.

But the state appears unlikely to change its hard stance.

"California is going no place in terms of changing our laws," said Barry Krisberg of the National Council on Crime and Delinquency, located in the Bay Area. He has studied inmate populations as a state commission member. "The politics have always been driven by liberals afraid of being viewed as soft on crime."

The system has doubled its capacity, with prisoners sleeping in three-bunk tiers and packed end-to-end in gymnasiums and classrooms. Nearly 30 percent are third-strike offenders, according to the nonpartisan Legislative Analyst's Office. More than half of those offenders were convicted of a nonviolent and non-serious crime, the advisory group said.

California voters approved tough sentencing laws in 1994, following the highly publicized abduction and murder of 12-year-old Polly Klaas by a convicted felon who could have been arrested earlier on a parole violation. After being sentenced to death, Richard Allen Davis puckered his mouth and extended his middle finger to television cameras.

The public seethed, and efforts to repeal the regulations have failed, most recently in 2004 when a ballot initiative was voted down. In 2003, the U.S. Supreme Court upheld the state's right to sentence a repeat offender to 25-years-to-life for stealing golf clubs from a Los Angeles country club.

"California has just gone crazy with increased penalties, Krisberg said. "It's the worst-case scenario in terms of harsh sentencing policies being supported by both the public and the legislature. It's the third rail - people don't want to touch it."

Despite popular support for such laws from police officers and district attorneys, not all favor harsh punishments.

In Ohio last month, county prosecutors recommended major changes to the state's tough-on-crime laws enacted over the past two decades. The proposals included eliminating mandatory prison terms for drug trafficking, except in the most serious cases, and reducing some crimes from felonies to misdemeanors - such as illegally using food stamps and the unauthorized use of cable TV.

The reasons?

Money and overcrowding. And a bit of politics: The proposals were a counter offer to the governor's plan to grant good-behavior credits to some inmates, expected to save Ohio more than $11 million by removing more than 2,600 prisoners from its teeming system.

Many prosecutors favor having the inmates stay put.

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